DePaul Law Review
Volume 31
Issue 1 Fall 1981
Article 7
From One Person, One Vote to One Acre, One
Vote - Another Retrenchment of the Right to Vote
in Special District Elections - Ball v. James
Michael E. Tabor
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Recommended Citation
Michael E. Tabor, From One Person, One Vote to One Acre, One Vote - Another Retrenchment of the Right to Vote in Special District Elections
- Ball v. James, 31 DePaul L. Rev. 177 (1981)
Available at: http://via.library.depaul.edu/law-review/vol31/iss1/7
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FROM ONE PERSON, ONE VOTE TO ONE ACRE,
ONE VOTE-ANOTHER RETRENCHMENT OF THE
RIGHT TO VOTE IN SPECIAL DISTRICT ELECTIONSBALL V. JAMES
The equal protection clause of the fourteenth amendment has been an
effective instrument in safeguarding the fundamental right to vote.' In striking down malapportioned election schemes at national,' state, 3 and
1. The Supreme Court first characterized the right to vote as "fundamental" because it
was "preservative of all rights." Yick Wo v. Hopkins, 118 U.S. 356, 370 (1886). The Court
reaffirmed that characterization and rationale in Reynolds v. Sims, 377 U.S. 533 (1964). In
Reynolds, the Court stated that "the right of suffrage is a fundamental matter in a free and
democratic society. Especially since the right to exercise the franchise in a free and unimpaired
manner is preservative of other basic civil and political rights ..
" Id. at 561-62.
The equal protection clause has been used to invalidate a variety of infringements on the
franchise. See, e.g., Dunn v. Blumstein, 405 U.S. 330 (1972) (Tennessee durational residence
requirement held unconstitutional); Cipriano v. City of Houma, 395 U.S. 701 (1969) (Louisiana statute found unconstitutional because it permitted only property taxpayers to vote in
elections called to approve the issuance of public utility revenue bonds); Harper v. Virginia Bd.
of Elections, 383 U.S. 663 (1966) (poll tax declared unconstitutional); Carrington v. Rash, 380
U.S. 89 (1965) (Texas constitutional provision that denied the franchise to bona fide residents
simply because they belonged to the armed forces declared unconstitutional).
2. The Supreme Court confronted federal congressional apportionment in Wesberry v.
Sanders, 376 U.S. 1 (1964). The plaintiffs in Wesberry were residents of a Georgia congressional district which contained 20% of the state's population but elected only 10% of the
state's congressional representatives. The Court held that art. i, § 2 of the United States Constitution, which provides that representatives be chosen "by the People of the several States,"
meant that "as nearly as practicable one man's vote in a congressional election is to be worth
as much as another's." Id. at 7-8.
3. In Baker v. Carr, 369 U.S. 186 (1962), the Court held that a claim brought under the
equal protection clause challenging the constitutionality of a state's apportionment of its
legislative seats presented a justiciable controversy subject to federal adjudication. Id. at 237.
Within nine months of the Court's decision in Baker, 34 state legislative apportionment
schemes had been challenged in the federal courts. Reynolds v. Sims, 377 U.S. 533, 566 n.30
(1964).
The Court's scrutiny of state voting schemes first involved the elections of statewide executive offices. At issue in Gray v. Sanders, 372 U.S. 368 (1963), was Georgia's county unit
method of counting votes in the Democratic party primary elections. Each county was given a
number of votes and all the votes allocated to that county were given to the candidate who
received a plurality of the county's popular vote. The effect of the system was the gradual dilution of the citizen's vote as the population of the county increased. The Court held that all
participants within a geographical unit must have an equal vote. Id. at 378-89.
The Court's equal apportionment language for congressional districts in Wesberry v.
Sanders, 376 U.S. 1 (1964), proved impossible to curtail. In dealing with reapportionment at
the state rather than the federal level, the Court only had to couch its language in equal protection terms rather than basing its holding in terms of art. 1, § 2. In Reynolds v. Sims, 377
U.S. 533 (1964), the Court held that equal protection required the seats in both houses of the
Alabama state legislature to be apportioned on a population basis. Thus, according to the
Court, districts should be of equal population, though mathematical precision was not required. Id. at 577. The right to cast an equal vote in federal and state elections was now
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local' levels as violative of the one person, one vote rule, 5 the United States
Supreme Court appeared willing to extend its egalitarian hand to virtually
secured. The right to cast an equal vote, however, should not be confused with the right to
vote in federal and state elections.
While the right to vote in federal elections is conferred by Art. I, § 2 of the Constitution, the right to vote in state elections is nowhere expressly mentioned ...
[lit is enough to say that once the franchise is granted to the electorate, lines may
not be drawn which are inconsistent with Equal Protection Clause of the Fourteenth Amendment.
Harper v. Virginia Bd. of Elections, 383 U.S. 663, 665 (1966) (citations omitted).
4. The application of the one person, one vote standard to local government was not
automatic. In Sailors v. Board of Educ., 387 U.S. 105 (1967), the Court upheld the selection
of county school board members by representatives of local school boards, even though each
board could only cast one vote regardless of the population it represented. A unanimous Court
held the one person, one vote standard was inapplicable for two reasons. First, the county
board was basically appointive rather than elective, and second, its function was administrative
rather than legislative. Id. at 109-10.
In Dusch v. Davis, 387 U.S. 112 (1967), the Court allowed a town to choose its city council
through an at-large election scheme that required one council member to reside in each of the
city's seven boroughs. Each borough varied widely in population, but the Court noted that the
boroughs were used as a basis for residence and not for representation. Thus, the Court
reasoned that each council member represented the entire city. 387 U.S. at 115-16. See also
Dallas County v. Reese, 421 U.S. 477 (1975) (Alabama statutory scheme providing for countywide balloting for each of the four members of the Dallas County Commission but requiring
that one member be elected from each of the four districts was not unconstitutional despite a
large disparity of population in each district).
Eventually, the one person, one vote rule was applied to local government in Avery v.
Midland County, 390 U.S. 474 (1968). At issue in Avery was the apportionment of four
districts which elected the Midland County Commissioners Court. Ninety-five percent of the
County's population resided in one of the four districts. The Commissioners Court exercised
general governmental powers over the entire county. Prompted by that broad authority, the
Court concluded: "[Tjhe relevant fact is that the powers of the Commissioners Court include
the authority to make a substantial number of decisions that affect all citizens, whether they
reside inside or outside the city limits of Midland." Id. at 484. Thus, the Court would not
allow a substantial deviation from equally populated districts for the election of local government officials having general governmental powers over the entire geographic area served by
the body. Id. at 484-85.
Many commentators were critical of the Avery decision and of the Warren Court's application of the one person, one vote standard to local government because it was felt that such a
standard would interfere with the ability of local government to solve its regional problems.
See, e.g., Grant & McArthur, "One Man-One Vote" and County Government: Rural, Urban
and Metropolitan Implications, 36 GEO. WASH. L. REV. 760 (1968); Martin, The Supreme
Court and Local Government Reapportionment: The Second Phase, 21 BAYLOR L. REV. 5
(1969). See generally Symposium: One Man-One Vote and Local Government, 36 GEO. WASH.
L. REV. 689 (1968). For an exhaustive review of the Burger Court's approach to local government, see Gelfand, The Burger Court and the New Federalism: Preliminary Reflections on the
Roles of Local Government Actors in the Political Dramas of the 1980's, 21 B.C.L. REv. 763
(1980).
5. The phrase "one person, one vote" ostensibly originated in Gray v. Sanders, 372 U.S.
368 (1963). Justice Douglas, writing for the majority, stated: "The conception of political
equality from the Declaration of Independence, to Lincoln's Gettysburg Address, to the Fifteenth, Seventeenth, and Nineteenth Amendments can mean only one thing-one person, one
vote." Id. at 381.
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every type of governmental election. 6 That willingness came to an abrupt
halt in Salyer Land Co. v. Tulare Lake Basin Water Storage District,7
where the Court upheld the constitutionality of a statutory scheme that
restricted the right to vote to district landowners and weighted the vote according to the value of the land held.' Although property ownership as a
voting condition had a historical foundation in this country, 9 it is a notion
generally considered repugnant to modern constitutional principles.'" Thus,
6. The legislative-administrative distinction set forth in Sailors v. Board of Educ., 387
U.S. 105 (1967), was abandoned in Avery v. Midland County, 390 U.S. 474 (1968). The parties
before the Avery Court urged it to apply a label to the Commissioners Court-either "administrative" or "legislative." The Court refused, however, stating that units of local government could not be pigeonholed into the "neat categories favored by civil texts." Id. at 482.
The Court has never determined whether a local legislative unit could be appointed rather than
elected. One commentator suggests there are situations where elections may be required. See
Nahmod, Reflections on Appointive Local Government Bodies and a Right to an Election, 11
DUQ. L. REV. 119 (1972).
The "general governmental powers" language of Avery was soon discarded in Hadley v.
Junior College Dist., 397 U.S. 50 (1970). In Hadley, the Court struck down a Missouri statute
that allowed for the creation of a school district in which one-half of its trustees were elected
by 60% of the population of its member districts. Conceding that the trustees did not exercise
the general governmental powers of the county commissioners in Avery, the Court nonetheless
asserted that the trustees performed "important governmental functions" that were general
enough and were of sufficient impact throughout the school district to warrant the invocation
of the one person, one vote principle. Id. at 54-55. The Court held, therefore, that as a general
rule, the equal protection clause required each qualified voter to be given an equal opportunity
to participate in popular state or local government elections. Id. at 56.
7. 410 U.S. 719 (1973).
8. Id. at 731, 734.
9. See generally D. McGOVNEY, THE AMERICAN SUFFRAGE MEDLEY (1949); A. McKINLEY,
THE SUFFRAGE FRANCHISE IN THE THIRTEEN ENGLISH COLONIES IN AMERICA (1905); K. PORTER,
A HISTORY OF SUFFRAGE IN THE UNITED STATES (1918). Porter noted that property qualifications on the right to vote were still being imposed by 10 of the original 13 states when the Constitution was adopted.
Restricting the franchise through property ownership was premised on the notion that people
with property have a greater stake in the community affairs. Consequently, landowners were
presumably "more responsive, more educated, more knowledgeable land] more worthy of confidence" than those without property. Harper v. Virginia Bd. of Elections, 383 U.S. 663, 685
(1966) (Harlan, J., dissenting).
10. Disenfranchisement through property requirements has been constitutionally disfavored
by the Court. See, e.g., Hill v. Stone, 421 U.S. 289 (1975) (election of bond issues for construction of city mass transit and new library held unconstitutional on grounds that limiting
class of voters to property owners violated the equal protection clause of the fourteenth
amendment); City of Phoenix v. Kolodziejski, 399 U.S. 204 (1970) (Arizona statute that permitted only real property taxpayers to vote in elections called to approve the issuance of
general obligation bonds declared unconstitutional); Kramer v. Union Free School Dist., 395
U.S. 621 (1969) (New York law held unconstitutional because it restricted the vote in school
district elections to those who owned, leased, were married to one who owned or leased taxable
property in the district, or had children in the school district); Cipriano v. City of Houma, 395
U.S. 701 (1969) (Louisiana statute that permitted only property taxpayers to vote in elections
called to approve the issuance of public utility revenue bonds declared unconstitutional). But
see Salyer Land Co. v. Tulare Lake Basin Water Storage Dist., 410 U.S. 719 (1973) (scheme
which restricted vote to landowners in proportion to property value, not violative of one per-
DEPA UL LA W REVIEW
[Vol. 31:177
Salyer appeared to be a narrow exception confined to its unusual facts."
Recently, however, the Court, in Ball v. James,'2 significantly expanded
Salyer to embrace a system for electing directors of a large water reclamation district that supplied electricity to one-half of Arizona's residents.' 3
The district limited voter eligibility to landowners and apportioned voting
power according to the amount of acreage owned.'" By parrotting the rule
set forth in Salyer and applying it to a substantially dissimilar factual setting, the Ball Court severely restricted close judicial scrutiny of voting
schemes at a vital unit of local government-the special district."
A thorough understanding of the Ball decision requires digression into
the Court's reapportionment cases, as well as a discussion of the Salyer opinion. The infirmities of the Ball decision and its reasoning are discussed, and
an alternative analysis is presented. A critical examination of the Ball opinion reveals that the effect of this decision will be to deprive a significant
number of individuals adequate representation in special district elections.
HISTORICAL DEVELOPMENT: STATE
REAPPORTIONMENT AND SALYER
The Supreme Court developed the right to equal representation by rejec-
son, one vote rule); Associated Enterprises, Inc. v. Toltec Watershed Improvement Dist., 410
U.S. 743 (1973) (limiting vote regarding watershed improvement district to landowners did not
violate equal protection).
Because Salyer was the first case in the Court's history that upheld property qualifications as
a condition to voting, it received a great deal of scholarly attention. See, e.g., Martin, Local
Reapportionment: The Exemption of Water Management Districts, 14 SANTA CLARA L. REV.
31 (1973); Martin, The Supreme Court and Local Reapportionment: Voter Inequality in
Special-Purpose Units, 15 WM. & MARY L. REV. 601 (1974); The Supreme Court, 1972 Term,
87 HARV. L. REV. 94 (1973). Comment, Public Officials Represent Acres, Not People, 7 Loy.
L.A.L. REV. 227 (1974); Note, Salyer Land Co. v. Tulare Lake Basin Water Storage Dist:
Opening the Floodgates in Local Special Government Elections, 72 MICH. L. REV. 868 (1974);
Note, State Water District's Disenfranchisement of Nonlandowners and Weighted Voting
Among Landowners Are Not Violations of the Equal Protection Clause, 22 U. KAN. L. REV.
263 (1974); Note, Special Purpose Unit Exception to One-Man One- Vote-Salyer Land Co. v.
Tulare Lake Basin Water Storage Dist., 1974 Wis. L. REV. 253 (1974); Recent Development,
Voting-Property Qualifications for Voting in Special Purpose Districts: Beyond the Scope of
"One Man-One Vote", 59 CORNELL L. REV. 687 (1974); Recent Case, Voting System Which
Restricts Water Conservation District Electorate to Landowners Only and Apportions Votes in
Relation to Land Valuation Does Not Violate Equal Protection Clause-Salyer Land Co. v.
Tulare Lake Basin Water Storage Dist., 42 U. CIN. L. REV. 773 (1973).
11. See note 38 and accompanying text infra. One prominent commentator remarked:
"Salyer plainly rests on the most problematic of foundations and should be treated as a narrowly limited exception to a powerful general principle that interest-based restrictions are constitutionally disfavored." L. TRIBE, AMERICAN CONSTITUTIONAL LAW 765 (1978) [hereinafter
cited as TRIBE].
12. 451 U.S. 355 (1981).
13. Id. at 371.
14. Id.
15. Special districts are a class of organized governmental entities that have a structural
form, an official name, perpetual succession, the right to sue and be sued, to make contracts
and to dispose of certain property. They possess considerable fiscal and administrative in-
BALL
1981]
ting, under a strict scrutiny analysis,' 6 voting schemes which denied or
diluted the vote. Under the strict scrutiny tier of the Court's "two-tier"
equal protection analysis, 7 any law infringing upon a "fundamental""
right is subjected to strict scrutiny and will be upheld only if the law is
necessary to promote a compelling state interest.' 9 The right to vote is
deemed fundamental because it is preservative of other rights. Consequently,
any alleged infringement of that right must be "carefully and meticulously
scrutinized." 20 Under the rational basis tier, which is primarily used in considering social and economic regulations, 2 ' a statute will be upheld if it is
rationally related to a legitimate state objective.22 The level of scrutiny used
by the Court is generally dispositive of the constitutionality of a particular
statute.23 That is, statutes subjected to strict scrutiny are invariably held undependence, and they have a high degree of public accountability. J. BOLLENS, SPECIAL
DISTRICT GOVERNMENTS IN THE UNITED STATES 1 (1957) [hereinafter cited as BOLLENS]. Collectively, special districts perform a wide variety of functions, but individually, they generally
provide only one or a few specialized functions. Id. at 2.
16. There are two exceptions to the general rule that a strict scrutiny analysis will be applied to voting cases. First, strict scrutiny is not applied to bona fide residence restrictions. See
Holt Civic Club v. City of Tuscaloosa, 439 U.S. 60 (1978) (bona fide residence alone does not
automatically confer the right to vote on all matters). Second, strict scrutiny is not applied to
governmental units that have a narrow purpose and disproportionate effect. See Salyer Land
Co. v. Tulare Lake Basin Water Storage Dist., 410 U.S. 719 (1973).
17. For a more thorough explanation of the "two-tier" equal protection approach, see
Gunther, The Supreme Court, 1971 Term-Foreword: In Search of Evolving Doctrine on a
Changing Court: A Model for a Newer Equal Protection, 86 HARV. L. REV. 1 (1972)
[hereinafter cited as Model for Equal Protection].
18. The Court has held that several rights are fundamental. See, e.g., Boddie v. Connecticut, 401 U.S. 371 (1971) (right to equal litigation opportunity); Shapiro v. Thompson, 394
U.S. 618 (1969) (right to interstate travel); Reynolds v. Sims, 377 U.S. 533 (1964) (right to
equal vote); Skinner v. Oklahoma, 316 U.S. 535 (1942) (right to procreate). See generally
TRIBE, supra note 11, at 921-48, 1002-11.
The Court also applies strict scrutiny to classifications based on "suspect" criteria. Suspect
criteria create classifications that burden "discrete and insular" minorities. United States v.
Carolene Prods. Co., 304 U.S. 144, 152-53 n.4 (1938) (dictum). Classifications held to be
suspect are national origin and race. See Hernandez v. Texas, 347 U.S. 475 (1954); Korematsu
v. United States, 323 U.S. 214 (1944). Strict scrutiny is also applied to classifications based on
alienage, unless the Court is dealing with matters firmly within a state's constitutional
prerogatives. See Foley v. Connelie, 435 U.S. 291 (1978) (Court held that New York could bar
employment of aliens as state troopers).
19. Legislation triggering the use of strict scrutiny requires an extremely close nexus between the classification and the legislative purpose. Thus, the Court examines the legitimacy of
the state's purpose and the relationship between that purpose and the classification. See G.
GUNTHER, CASES AND MATERIALS ON CONSTITUTIONAL LAW 671 (10th ed. 1980) [hereinafter
cited as
GUNTHER].
20. Reynolds v. Sims, 377 U.S. 533, 562 (1964).
21. See GUNTHER, supra note 19, at 671.
22. See, e.g., McGowan v. Maryland, 366 U.S. 420 (1961) (upholding statutory prohibition
of selected activities on Sundays); Kotch v. Board of River Port Pilot Comm'rs, 330 U.S. 552
(1947) (upholding constitutionality of Louisiana law conditioning state license as a harbor pilot
upon completion of an apprenticeship period, regardless of claims that incumbent pilots
selected only friends and relatives to serve as apprentices).
23. The predictable results reached under the two-tier analysis provoked one constitutional
DEPAUL LAW REVIEW
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constitutional," whereas statutes subjected to a rational basis test are virtually guaranteed approval.2 5 Thus, the Court secured equal representation
by subjecting reapportionment cases to strict scrutiny.
The Supreme Court's involvement in state reapportionment began with its
landmark decision in Reynolds v. Sims.26 Under the equal protection clause,
Reynolds applied the one person, one vote principle to the elections of state
legislators. 27 Because state legislatures enact laws which affect all citizens of
the state, the Court declared that each citizen should have an equally effective voice in the election of state legislators.28 Subsequently, in Avery v.
Midland County,29 the Court expanded Reynolds to include the election of
county officials because they exercised "general governmental powers over
the entire geographic area served by the body." 3 In Hadley v. Junior Col-
lege District,3 the Court further extended the scope of Reynolds to the elec-
tion of trustees of a community college district because the trustees per-
formed "important governmental functions" that were "general enough"
and had sufficient impact throughout the district.32 The Court provided an
exception to the Reynolds' rule in both Avery" and Hadley" by stating that
there may be a governmental unit whose peculiar function or impact does
not require the application of Reynolds."
scholar to characterize strict scrutiny as " 'strict' in theory and fatal in fact" and rational basis
as "minimal scrutiny in theory and virtually none in fact." Model for Equal Protection, supra
note 17, at 8.
24. See Dunn v. Blumstein, 405 U.S. 330, 363-64 (1972) (Burger, C.J., dissenting). Contra,
Burns v. Fortson, 410 U.S. 686 (1973) (50-day voter residency requirement upheld under strict
scrutiny analysis); Korematsu v. United States, 323 U.S. 214 (1944) (racial classification upheld
under strict scrutiny analysis).
25. The Supreme Court has only held one statute concerning economic regulation unconstitutional under the rational basis test. See Morey v. Doud, 354 U.S. 457 (1957). Morey
was overruled less than 20 years later by City of New Orleans v. Dukes, 427 U.S. 297 (1976)
(upholding New Orleans ordinance that prohibited vendors selling foodstuffs from pushcarts
except those vendors who had operated the same business within the French Quarter for eight
years).
26. 377 U.S. 533 (1964).
27. Id. at 568.
28. Id. at 565. Since most citizens participate in the political process only by electing
legislators to represent them, the Reynolds Court stated that political equality required that
each citizen have an equally effective voice in the election process. Id.
29. 390 U.S. 474 (1968).
30. Id. at 485. The County Commissioners Court in Avery established courthouses and
jails, appointed health and county officials, built roads and bridges, administered welfare services, set the county tax rate, adopted the county budget, and equalized tax assessments. Id. at
476.
31. 397 U.S. 50 (1970).
32. Id. at 54. The Hadley Court maintained that there was no discernible reason why constitutional distinctions should be drawn from the purpose of the election. Hadley downplayed
the differences between the authority of varying officials and emphasized the right to participate equally in the election process. Id. at 54-55.
33. 390 U.S. at 483-84.
34. 397 U.S. at 56.
35. Both Avery and Hadley indicated that a deviation from Reynolds might be allowed
1981]
BALL
This exception to Reynolds was employed in Salyer Land Co. v. Tulare
Lake Basin Water Storage District,3" where the Court abandoned its uncompromising use of strict scrutiny in the context of special water district in
rural California.37 In Salyer, the Tulare Lake Basin Water Storage District
was created to acquire, store, and distribute water for farming in the Tulare
Lake Basin." Only landowners were qualified to elect the district's directors
and the votes were weighted according to land value. 9 The plaintiffs, small
landowners, nonlandholding residents, and a lessee, alleged that the election
scheme unconstitutionally denied and diluted their votes." ' The Court rejected the plaintiffs' constitutional challenge because of the narrow purpose
of the water storage district and the disproportionate effect of its activities
on landowners as a group." This reasoning effectively enabled the Court to
remove Salyer from the stricture of Reynolds v. Sims and its progeny.
Although finding that the water district's purpose was narrow, the Salyer
Court conceded that the district exercised some typical governmental
power.' 2 Nevertheless, the Court concluded that the district possessed
relatively limited authority.' 3 The mere acquisition, storage, and distribution
of water, absent other public services ordinarily provided by a municipality,
was insufficient to warrant the application of the one person, one vote prin-
ciple espoused in Reynolds." Also contributing to the rejection of the
Reynolds' principle was the disproportionate effect of the district's activities
under the proper circumstances. The Court did not state that strict scrutiny would be inapplicable under those circumstances. Thus, it does not necessarily follow that strict scrutiny
should be abandoned when a governmental unit is permitted to deviate from the Reynolds' one
person, one vote rule.
36. 410 U.S. 719 (1973).
37. Id.
38. Id. at 723. The district was comprised of 193,000 acres of highly fertile land located in
the Tulare Lake Basin. Its population consisted of 77 persons, including 18 children. The majority of that population were employees of one of four corporations that farmed 85% of the
land in the district. Id.
39. Id. at 725.
40. Id. at 724-25.
41. Id. at 728.
42. Id. at 728. The district board had the power to employ and discharge persons on the
permanent staff and to contract for construction of district projects. CAL. CODE § 43152 (West
1973 & Supp. 1981). It could condemn private property, id. §1 43530-33, and it could
cooperate and contract with other state and federal agencies. Id. § 43151. The District could
authorize both general obligation bonds and interest-bearing warrants. Id. §§ 44900-45900. The
board could also generate and distribute hydroelectric power, id. § 43025, and it could engage
in flood control activities. Id. § 42000. As far as the Salyer Court could discern, the district
did not engage in the generation, sale, or distribution of hydroelectric power. 410 U.S. at 724
n.4.
43. 410 U.S. at 728.
44. Id. at 728-29. The Salyer Court also noted that there were no towns, shops, or other
facilities designed to improve the quality of life within the district boundaries. Since the district
in Ball v. James had facilities designed to improve the quality of life within its boundaries, the
inquiry into the character of the facilities within the boundaries of a special district no longer
seems relevant.
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on the landowners who bore the entire economic burden of the water
storage district."5 The financial benefits and burdens of the district were
distributed to, and assessed against, the landowners in proportion to the
value of their land."' Consequently, apportioning the vote according to land
value, thereby disenfranchising the nonlandowners, appeared rational to the
Salyer Court."7
This rational nexus between the voting scheme and land ownership was
the linchpin of the Salyer decision. By rejecting the application of the one
person, one vote rule and the strict scrutiny analysis, the Court cleared the
way for upholding voting schemes based on land ownership unless they
were "wholly irrelevant to achievement of the regulation's objectives.""
Predi&ably, the statute easily withstood the Court's rational basis
analysis. 9 Unfortunately, the Court failed to articulate the impact of the
districts' activities on the interests of those residents whose votes were
diluted or disenfranchised. 5" In short, the opinion rested solely on financial
considerations .5'
The Salyer decision marked a significant retreat by the Supreme Court
from its willingness to apply the one person, one vote rule to local government. The exception created by Salyer was prompted by the narrow purpose
of the district and its disproportionate effect on landowners as a group.
Eight years later, the Supreme Court delineated the scope of the Salyer exception in Ball v. James. 2
THE BALL DECISION
Facts and Procedural History
The Salt River Project Agricultural Improvement and Power District
(District) stores and delivers untreated water to the owners of 236,000 acres
45. 410 U.S. at 729.
46. Id.
47. Id. at 729-30.
48. Id. at 730 (quoting Kotch v. Board of River Port Pilot Comm'rs, 330 U.S. 552, 556
(1947)).
49. See note 25 and accompanying text supra.
50. The Court's failure to consider the impact of the board's decisions on the powerless
residents was particularly egregious in view of the plight of one nonlandowner. The board,
dominated by the largest landowner, J.G. Boswell Co., voted 6-4 to table a motion that would
divert floodwaters into the Buena Vista Lake Basin, the result being that 88,000 of the 193,000
acres in the Tulare Lake Basin remained flooded. That inaction left one residence 15-1/2 feet
below the water level of the flood crest. Apparently, J.G. Boswell Co. had a long-term
agricultural lease in the Buena Vista Lake Basin and flooding it would have interfered with the
farming of the crops the following season. 410 U.S. at 737-38 (Douglas, J., dissenting).
Because J.G. Boswell owned the greatest number of acres and the voting power for the
district's directors was distributed by land value, the election results were a foregone conclusion. Althoughthe California Water Code provided for elections every other year, the last election was held in 1947. Id.at 735.
51. 410 U.S. at 729-31.
52. 451 U.S. 355 (1981).
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BALL
of land in Arizona." The District subsidizes its water operations by selling
electricity to hundreds of thousands of people in an area comprising a large
part of Phoenix." During the Depression, the sale of electricity from the
Salt River Project Association, the District's predecessor, proved insufficient to meet its financial burdens." In response, the District was formed as
a municipal corporation of the state to enable it to issue tax exempt
bonds. 6 The District could then raise financing through an acreageproportionate taxing power or through bonds secured by liens on the real
property within the District." Under Arizona law, voting eligibility for the
District's directors was limited to landowners, 8 and voting power was apportioned according to the amount of acreage owned." Nonlandholding
residents of the District and residents who owned less than one acre complained that the acreage-based scheme violated the equal protection clause
of the fourteenth amendment." They alleged that the District's activities
had a substantial effect on everyone living within the District, regardless of
53. Id. at 357. The Salt River Project was formed by Arizona farmers in an effort to irrigate their arid lands with water from the Salt River. Under the Reclamation Act of 1902, 32
Stat. 388 (1902) (current version at 43 U.S.C. § 371 (1976) (the landowners received interest
free loans from the United States to build reclamation projects. The farmers who benefited
from the reclamation project had to repay the United States for the construction costs. The
Salt River Valley Water Users Association was formed as an Arizona corporation to serve as
the contracting agent for the landowners. The landowners who subscribed to the Association
received reclamation water and were given the power to vote in Association decisions in proportion to the amount of land they owned. The Association raised income through acreageproportionate stock assessments and those assessments became a lien on the subscriber's land
until paid. 451 U.S. at 357.
54. Id. Congress authorized projects created under the Reclamation Act to generate and
sell hydroelectric power. 32 Stat. 388 (1902) (current version at 43 U.S.C. § 522 (1976)). The
Salt River Project has taken advantage of this revenue tool almost since its inception. 451 U.S.
357.
55. Id.
56. Id. Many Association members opposed creating the special district, in part, because of
the manner in which the state statute would have distributed the voting power. Votes for the
election of the-District's directors would have been distributed per capita among the landowners and not according to the acreage formula for stock assessments and water rights. In
response to the Association's request, the Arizona state legislature amended the statute in 1936.
Voting was restricted to landowners and voting power was allocated according to the number
of acres owned. The Salt River Project Agricultural Improvement and Power District was
subsequently formed in 1937. The Association transferred all of its property to the District and
became the District's contracting agent. The District manages the power and water storage of
the project and the Association, as the District's agent, manages water delivery. Id. at 357-61.
57. Id.
58. ARIZ. REV. STAT. ANN. § 45-909 (1956 & Supp. 1980-81).
59. Id. at § 45-983. Originally, each landowner was entitled to cast one vote for each acre
of land he owned within the district. ARIZ. REV. STAT. § 45-983 (1956). The Agricultural Improvement Act was amended in 1969 to allow owners of less than one acre to cast fractional
votes in proportion to their acreage. ARIZ. REV. STAT. § 45-983 (Supp. 1980-81). Before 1976,
10 directors were elected from a designated geographical unit of the District. In 1976, the state
legislature enlarged the Board to 14 members. Those four new members are elected at-large
and each landowner has one vote in the at-large election. 451 U.S. 359 n.2.
60. The plaintiffs requested declaratory and injunctive relief in an action brought under the
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property ownership." Specifically, the residents claimed that they were
adversely affected because of the scope of the District's powers, its supply
of electricity to one-half of the Arizona population, and its exercise of
flood control and environmental management.62
The district court granted the Salt River Project's motion for summary
judgment.6
The court of appeals reversed, holding that the District's
characteristics did not parallel the narrow circumstances of the Salyer exception and thus, the Reynolds' principle of one person, one vote controlled.6 '
Holding and Reasoning
The Supreme Court in Ball v. James" reversed the court of appeals and
held that the functions of the Salt River District (District) were sufficiently
narrow and specialized to release it from the one person, one vote election
requirement enunciated in Reynolds v. Sims. 6 The Court asserted that any
factual distinctions between the District's situation and that in Salyer did
not constitute a "constitutional difference" under the principles articulated
in the Avery, Hadley, and Salyer cases.6 Justice Stewart, writing for the
majority, 8 stated that the District did not discharge the type of governmental powers that require the application of Reynolds."' In support of its position the Court noted that the District did not levy sales taxes or ad valorem
property taxes.7" In addition, the Court pointed out that the District lacked
the authority to enact laws governing the conduct of citizens or to perform
other governmental functions, such as providing health, education and
welfare.7
Civil Rights Act of 1871, 42 U.S.C. § 1983 (1976). Joint Appendix at 4-5, Ball v. James, 451
U.S. 355 (1981) [hereinafter cited as Joint Appendix].
61. 451 U.S. at 360.
62. Id.
63. Id.
64. James v. Ball, 613 F.2d 180, 182-85 (9th Cir. 1980).
65. 451 U.S. 355 (1981).
66. Id. at 370.
67. Id.at 366.
68. Justice Stewart was joined by Chief Justice Burger, and Justices Powell, Rehnquist, and
Stevens. Justice Powell also filed a concurring opinion. Justice White filed a dissenting opinion, which was joined by Justices Brennan, Marshall, and Blackmun.
69. 451 U.S. at 366. The District has the power, among others, to exercise the right of eminent domain and to bring condemnation proceedings, ARIZ. REv. STAT. ANN. § 45-939 (1956);
the right of entry upon any land for any reason necessary to carry out the purposes of the
District, id. § 95-940; the power to raise revenue through the levy of taxes on all real property
located within its geographical area, id. § 45-1011; the power to sell bonds, id. § 45-1041; the
power to enter into a wide range of contractual arrangements to secure resources, id.
§ 45-935(B) (Supp. 1980-81); the veto power over all transfers of surface water from one place
or type of use to another. Id. § 45-172(5).
70. 451 U.S. at 366. The District did have, however, the power to levy taxes on real property located within its geographical area. See note 69 supra.
71. 451 U.S. at 366. Two other normal governmental functions mentioned by the Court
were the maintenance of streets and the operation of sanitation services. Id.
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BALL
The functions of the Salt River District were characterized as being
relatively narrow.72 Refusing to recognize any constitutional significance in
the fact that forty percent of the water delivered by the District was used
for nonagricultural purposes, the Court stated that the constitutionally relevant fact was that all water was distributed according to land ownership.7 3
The Court followed the Arizona state judiciary and concluded that the
District was essentially a business enterprise which primarily benefited the
landowners who created it.7" As a result, the majority would not allow the
District's nominal public character to bring it within the purview of
Reynolds.75
The Ball Court also concluded that the District's power operations were
not constitutionally related to its voting scheme.76 In the Court's view,
because the supply of electricity was not traditionally undertaken by the
government, it was not a general or important governmental function that
would subject the District to the one person, one vote rule.77 In addition,
since the electrical function was stipulated as being incidental to the water
function, 78 the Court maintained that the power supply could not alter the
72. Id. The Court noted that the District merely stores water behind its dams, conserves it
from loss, and distributes it through canals. In further support of its conclusion, the majority
stated that the District and Association do not own, sell, or buy water, nor do they control the
use of any water they deliver. Id. For additional explanation of the relationship between the
District and the Association, see note 55 supra.
73. 451 U.S. at 367.
74. Id. The Arizona state judiciary has always maintained that the District is a business
corporation with attributes of sovereignty which are only incidental to its business and
economic purposes. See, e.g., Niedner v. Salt River Project Agricultural Improvement and
Power Dist., 121 Ariz. 331, 590 P.2d 447 (1979) (discharge of employee by agricultural improvement district did not constitute state action); Uhlmann v. Wren, 97 Ariz. 366, 401 P.2d
113 (1965) (District is not required to show that the surplus power which it sells is needed in
part for irrigation purposes or that such power is developed in relation to its hydrogenerating
potential); Local 266, International Bhd. of Electrical Workers v. Salt River Project Agricultural Improvement and Power Dist., 78 Ariz. 30, 275 P.2d 393 (1954) (District's operations are
conducted to enable it to accomplish the business and economic purposes for which it was
organized).
75. 451 U.S. at 368. The District is a municipal corporation organized under the laws of
Arizona. Under the Arizona Constitution, such districts are "political subdivisions of the
State, and vested with all the rights, privileges and benefits, and entitled to the immunities and
exemptions granted municipalities and political subdivisions under this Constitution or any law
of the State or of the United States." ARIZ. CONST. art. 13, § 7.
The District's property is not subject to state or local property taxation. ARIZ. REV. STAT.
ANN. § 45-902 (1956). The District, however, makes voluntary ad valorem contributions to the
state according to the same formula by which the state's private utilities pay property taxes.
ARIZ. REV. STAT. ANN. §§ 45-2201 to -2202 (Supp. 1980-81).
76. 451 U.S. at 367-68.
77. Id.
78. "[T]he United States had constructed as incident thereto with government and Association funds, a hydroelectric power system ....
to produce power to be used by the Association
in support of its primary irrigation activities." Joint Appendix, supra note 60, at 24 (emphasis
added).
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character of the enterprise.79 Furthermore, the Court noted that the relationship between the nonvoting buyers of electricity and the District's power
plants was essentially the same as that between consumers and a business
enterprise.8" Accordingly, the number of nonvoting consumers of electricity
did not justify application of the Reynolds' one person, one vote rule to the
District.8
After concluding that the District's functions were outside the Reynolds'
stricture, the Court focused on the disproportionate effect the District's
functions had on the landowners. The Court determined that the disproportionate effect flowed from three factors: (1) the only residents of the
District whose lands were subject to liens securing District bonds were the
voting landowners; (2) only the voting landowners were subject to the
acreage-based taxing power of the District; and (3) the voting landowners
were the only residents who had committed capital to the District. 2
Given that disproportionate relationship, the Court determined that the
voting scheme was constitutional because it bore a reasonable relationship
to the state's objectives.8 3 According to the Court, the state could rationally
limit the vote to landowners because if the landowners were not given an
exclusive voice in the District's business, they may not have subjected their
land to liens which secured the District bonds. Without the bonds the creation of the District would not have been possible. Additionally, a vote
weighted in relation to the acres owned was reasonable because the number
of acres represented the proportionate risks the landowner incurred, and it
reflected the distribution of the benefits and burdens of the District's water
operations.8"
CRITICISM
Ball v. James established that the production and distribution of electricity
was not a general or important governmental function requiring the
District, a municipal corporation, to be subject to the one person, one vote
principle of Reynolds. 6 Rather than follow Salyer, which characterized
utilities as a "general public service," 87 the Ball Court based its narrow
view of electrical utilities on Jackson v. Metropolitan Edison Co. 8 In
79. 451 U;S. at 369.
80. Id. at 370.
81. Id.
82. Id.
83. Id. at 371.
84. See note 56 supra.
85. 451 U.S. at 371.
86. Id. at 368-69.
87. 410 U.S. 719, 728-29 (1973). In referring to the Water Storage District's limited purpose, the Salyer Court stated: "It provides no other general public services such as schools,
housings, transportation, utilities, roads or anything else of the type ordinarily financed by a
municipal body." Id. (emphasis added).
88. 419 U.S. 345 (1974).
1981]
BALL
Jackson, the Court held that the actions of a privately-owned utility did not
constitute state action for fourteenth amendment purposes. 89 The Jackson
Court remarked that providing utilities is "not traditionally the exclusive
prerogative of the State. ' 9 ° That statement, however, does not necessarily
mean that providing utilities does not constitute a governmental function
when done so by the state. The Jackson Court did not consider the issue of
whether the state is bound by the fourteenth amendment when the state
itself provides utilities. Thus, the Ball Court's reliance on Jackson was
misplaced. 9'
After removing the production and distribution of electricity from the
scope of governmental domain, the Ball Court characterized the relationship between the nonvoting residents and the District's electrical operations
as a consumer-business relationship, 92 thereby subjecting the Court to the
burdensome task of distinguishing between proprietary and governmental
activity.9 3 A simple proprietary, governmental distinction, however, is inadequate for classification of the myriad of governmental functions 4
because a large number of governmental functions could easily be subsumed
89. Id. at 358-59. The petitioner in Jackson claimed that under state law she was entitled to
reasonably continuous electrical service and that the termination of her electrical service was
state action depriving her of her property without due process. Id. at 348. The Court denied
her relief because the state was not sufficiently connected with the private utility so as to make
the utility's conduct state action. Id. at 358:
90. Id. at 353. See also State v. Lincoln County Power Dist., 60 Nev. 401, 111 P.2d 528
(1941) (supply of electrical energy is a legitimate municipal or public purpose); Boyce v. Lancaster County Natural Gas Auth., 266 S.C. 398, 223 S.E.2d 769 (1976) (manufacture and sale
of power is public and governmental function).
The Ball Court boldly asserted that neither the existence nor size of the District's power
business affected the legality of its property-based voting. 451 U.S. at 368. This statement,
however, does not comport with the Court's previous language regarding when weighted voting
schemes might be permissible. In Hadley v. Junior College Dist., 397 U.S. 50 (1970), the Court
stated that the approval of a weighted voting scheme would be predicated on the governmental
unit's activities being "far removed from normal governmental activities." 397 U.S. at 56 (emphasis added). The supply of electricity, however, does not appear to be far removed from
normal governmental activities.
91. Ball v. James, 451 U.S. at 386-87 (1981) (White, J.,dissenting).
92. Id. at 370.
93. Id. at 386. The Court had previously.rejected the notion that governmental activity can
be neatly divided into wholly proprietary or governmental categories. Specifically, the Court
stated "[g]overnment is not partly public or partly private, depending upon the governmental
pedigree of the type of a particular activity or the manner in which the Government conducts
it." Id. at 387 (White, J.,dissenting) (quoting Indiana Towing Co. v. United States, 350 U.S.
61, 67-68 (1955)). See generally Recent Development, Municipal Corporations-Alienabilityof
Property-Rejection of Governmental-ProprietaryTest, 47 TENN. L. REV. 872 (1980).
94. The function of a governmental unit depends upon what type of unit it is. The Bureau
of the Census classifies local governments by five major types-counties, municipalities,
townships, school districts, and special districts. Special districts perform diverse functions
ranging from natural resources to cemeteries and libraries. In early 1977, there were 79,913
governmental units in the United States. BUREAU OF CENSUS, U.S. DEPT. OF COMMERCE,
GOVERNMENTAL ORGANIZATIONS 1, 5 (1978).
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under a proprietary or consumer-business relationship label.9 5 Even assuming the governmental-proprietary label is functional, it is irrelevant in view
of the fact that when a state provides services, constitutional safeguards apply through the equal protection clause of the fourteenth amendment.96
Further, the Court's literal view of the relationship between the District's
water and power businesses enabled it to dismiss the significance of the
power business. Originally, the supply of power was stipulated as
"incident" to the supply of water. 7 On the basis of that stipulation, the
Court stated that the electrical business could not change the character of
the District. 8 As the Ball dissent noted, however, "incidental" is not
synonymous with insignificant. 9 By endorsing the historical characterization of the supply of power, the Court ignored the pervasive effect of the
District's power business on the present day residents. The Court's inquiry
into the character of a governmental unit should have focused primarily on
the services the unit provided and the effect those services had on the
public.' 0
The Ball Court's, emphasis on the District's motive for supplying electricity
further evidenced its inappropriate view of this function. Specifically, the
Court found it significant that the electrical service was initiated to defray
the cost of water for the landowners rather than to provide electricity to the
public.' 0 ' The underlying intention behind that action, however, did not
alter its impact upon the public. The Court's misguided focus served only
to avoid the articulation of any interest the nonvoting resident had in the
operation of the District's utilities.
Moreover, because the District did not exercise general governmental
powers, the Court reasoned that two earlier decisions which effectively identified the interests of disenfranchised voters could be disregarded. In
Cipriano v. City of Houma,'0 2 the Court held unconstitutional a statute
that restricted the vote to "property taxpayers" in elections called to ap-
95. As the dissenting opinion in Ball stated: "[l]t is hard to think of any governmental activity . . . . which is 'uniquely governmental,' in the sense that its kind has not at one time or
another been, or could not conceivably be, privately performed." 451 U.S. at 387 (White, J.,
dissenting) (quoting Indiana Towing Co. v. United States, 350 U.S. 61, 68 (1955)).
96. See Pierce v. Society of Sisters, 268 U.S. 510 (1925) (state may not regulate public
education so as to exclude one or more religious sects, but those sects may maintain their own
parochial school systems). See generally Civil Rights Cases, 109 U.S. 3 (1883).
97. See note 78 and accompanying text supra.
98. 451 U.S. at 369. But see Wingrove v. Public Serv. Comm'n, 74 W. Va. 190, 81 S.E.
734 (1914) (supplying electrical power, incidental to the corporation's primary purpose of mining and selling coal, was of such a public nature so as to subject the corporation to control
and regulation by the public service commission).
99. 451 U.S. at 382-83 n.5 (White, J., dissenting).
100. Cf. Near v. Minnesota, 283 U.S. 697 (1931) (in determining the constitutionality of a
statute, the Court should look to the statute's substance and its operation and effect, not merely
its matter of form).
101. 451 U.S. at 369.
102. 395 U.S. 701 (1969).
19811
BALL
prove the issuance of revenue bonds by a municipal utility.' 3 The Court
struck down the statute because both property owners and nonproperty
owners used the utilities and paid the rates. In the Court's words, "the
operation of the utility systems-gas, water, and electric-affects virtually
every resident of the city. . . ." The principles of Cipriano were extended
further in City of Phoenix v. Kolodziejski."' In Kolodziejski, a statute
restricting the vote to real property taxpayers in elections called to approve
the issuance of general obligations bonds was held unconstitutional.' 6 The
Court reasoned that when both property owners and nonproperty owners
would be substantially affected by the outcome of the election, both should
have the opportunity to vote.' 7
In short, the impact of the election and the interests of the disenfranchised
parties in both Cipriano and Kolodziejski were not altered because the
municipalities happened to exercise general governmental powers. Rather,
those decisions focused on the interaction between the subject of the election and the interests of the disenfranchised class. The Ball Court, however,
distinguished Cipriano and Kolodziejski on the ground that the municipalities exercised a panoply of governmental powers,' 8 a factor not relevant to
the decision in either case. In so doing, the Ball Court failed to consider the
decisive factors in those cases-the impact of the elections and the interests
of the disenfranchised class. By focusing on the general services those municipalities provided, the Ball Court failed to consider any real interest the
nonvoter may have had in the performance of only one of those services.
Yet by finding the narrow purpose of the District, the Ball majority
presumed the disenfranchised class had only a minimal interest, if any, in
the operations of the District.
In further support of its holding, the Court listed three factors which
contributed to the disproportionate effect that the District's activities had
on the landowners.' 9 First the Court stated that the only residents of the
District whose lands were subject to liens securing District bonds were the
voting landowners. ' 0 This statement, however, ignores the fact that only
twelve percent of the District's debt was secured by those liens,'' and that
the general obligation bonds contained covenants providing electric rates to
103. Id. at 702. In Cipriano, the City of Houma attempted to limit the franchise to those
who were "primarily interested" in the election. The Court did not reach the issue of whether
a state could, in some circumstances, limit the vote to those who were "primarily interested."
Id.at 704 n.5.
104. Id.at 705.
105. 399 U.S. 204 (1970).
106. Id.at 212-13.
107. Id.at 212. As in Cipriano, the Court in Kolodziejski did not reach the question as to
whether a state could limit the franchise to those primarily interested.
108. 451 U.S. at 366-67 n.ll.
109. Id. at 370-71.
110. Id.
11l.Brief for Appellee at 7, Ball v. James, 451 U.S. 355 (1981) [hereinafter cited as Appellee's Briefl.
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be set at levels sufficient to pay all debt service.'' 2 Consequently, the risk of
forfeiture for the bond holders was minimal at best. The second factor the
Court found as contributing to the disproportionate effect was that only the
voting landowners were subject to the acreage-based taxing power of the
District.'' 3 Since that tax had not been levied since its inception in 1936,'"
this point is of little consequence. Finally, the Court stated that only the
landowners have committed capital to the District through stock
assessments charged by the Association.'' This factor is misleading in that
those capital investments were last made in 1951''1 and amount to only a
small fraction of the electrical revenues now collected by the District."' In
essence, the Court found a disproportionate effect by concentrating on the
financial factors surrounding the District's creation. This view, however, ignored the fact that the financial burden of the District has shifted from the
landowners to the consumers of electricity.''"
This superficial analysis of the disproportionate effect of the District
glossed over the interests of the disenfranchised class. To be sure, the
District's operations have had a disproportionate effect on the voting landowner. Nonetheless, the financial factors mentioned by the Court do not
amount to a significant difference when compared with the interests the
nonvoting residents have in their electrical service or in the environmental
decisions made by the District. To illustrate, the nonvoting residents clearly
have an active interest in the reliable supply of electricity at a reasonable
rate. The District, on the other hand, is intimately involved in the pumping
and allocation of water within its service area.'' Hence, the nonvoting
residents' electricity supply is vitally affected by the District's decisions concerning water resources.' 20
112.
113.
114.
115.
Id. at 24 n.17 (emphasis added).
451 U.S. at 370.
Joint Appendix, supra note 60, at 35.
451 U.S. at 370.
116. Id. at 366 n.10.
117. Id.
118. In 1974, the sale of electricity accounted for 9807o of the District's revenues. Joint Appendix, supra note 60, at 36. Further, since 1973, all borrowing for capital improvements of
the District has been secured by pledges of revenues from the District's power earnings. 451
U.S. at 366 n.10.
119. See note 145 infra.
120. Additionally, the Ball Court stated perfunctorily that the "distinction
between
agricultural and urban land is of no special constitutional significance in this context." 451
U.S. at 367. That conclusory statement, however, renders questionable some of the reasoning
behind Salyer. The Salyer Court determined that the restrictive voting scheme was understandable because the nonvoting residents did not finance the water operations and the water was
limited to agricultural purposes. 410 U.S. at 729-30. Thus, the land, not the residents, received
the exclusive benefit of the water. This conclusion is erroneous. Because Phoenix receives the
majority of its municipal water from the District, and its financial burden has shifted from the
landowners to the users of electricity, the nonvoting residents are affected as well.
Subsequent to the Salyer decision, two state courts have reached conclusions contrary to Ball
where the special districts involved were comprised largely of metropolitan regions and the
19811
BALL
Unfortunately, the disproportionate effect analysis of the Court focuses
only on the disparity between the voter and nonvoter, and thus, involves no
independent evaluation of the interests of the nonvoting group."' Under
this type of analysis, if the District's operations had a substantial effect on
one class, a slightly greater effect on another class would result in the total
exclusion of the former group from the franchise.' 22 The landowner's total
financial support of the district in Salyer was essentially nonexistent in Ball.
Yet, the small financial disparity between the landowners and nonlandowners in Ball was deemed sufficient to exclude nonlandowners under the
disproportionate effect analysis.
Although the Court used the disproportionate effect of the District to
justify disenfranchisement, that analysis does not fully justify the weighted
voting scheme applied to the landowners. Although it is true that some landowners incurred a greater financial burden because they owned more land,
it is equally true that they received a proportionally larger benefit from the
District. A difference in the monetary value of the District's activities between the large landowner and the small landowner does not necessarily
reflect a disproportionate effect of those activities among the landowners. A
small benefit or burden to the small landowner may be as crucial to him as
the larger benefit or burden is to the large landowner.' 23
Finally, whereas the Salyer Court identified remedies available to the
disenfranchised and diluted voter,' 4 the Ball Court failed to mention any
remedies. The voting scheme in Ball, unlike that in Salyer, " ' did not permit
proxy voting in the general election. The lessees in Ball cannot negotiate
with the landowners to obtain the right to vote and are therefore left disenfrancished. Further, the utility rate structure of the District was not subject
nonlandowning residents provided financial support to the districts. See, e.g., Choudhry v.
Free, 17 Cal. 3d 660, 552 P.2d 438, 131 Cal. Rptr. 654 (1976); Johnson v. Lewiston Orchards
Irrigation Dist., 99 Idaho 501, 584 P.2d 646 (1978).
121. See Note, Salyer Land Co. v. Tulare Lake Basin Water Storage District: Opening the
Floodgates in Local Special Government Elections, 72 MICH. L. REV. 868, 884-85 (1974).
122. The disproportionate effect analysis used in Salyer and Ball, unlike the analyses used in
the Court's previous decisions, does not guarantee the franchise to classifications that are affected by an election. In testing the constitutionality of a restricted voting scheme in Kramer v.
Union Free School Dist., 395 U.S. 621 (1969), the Court asked, "whether all those excluded
are in fact substantially less interested or affected than those the statute includes." Id. at 632
(emphasis added). Similarly, the Court found the restrictive voting scheme in City of Phoenix
v. Kolodziejski, 399 U.S. 204 (1970), unconstitutional because there was "no basis for concluding that nonproperty owners are substantially less interested . . . than are property
owners." Id. at 212 (emphasis added). In effect, the disproportionate effect analysis enables
the Court to disenfranchise nonlandowners who may only be slightly less affected than landowners.
123. Cf. Stewart v. Parish School Bd., 310 F. Supp. 1172 (E.D. La.), aff'd mem., 400 U.S.
884 (1970) (taxpayer with small assessment may be as equally interested in bond issue as taxpayer with large assessment).
124. 410 U.S. at 733, 734 n.10.
125. See notes 36-52 and accompanying text supra.
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to state regulation.' 26 The private utilities in Arizona are regulated by the
state, but because the District is a municipal corporation, it purported to
regulate itself and thereby protect the public interest.'2 7 The only remedy
the Court suggested for grievances against the District was to take action
through the state political process.' 28 As the Ball dissent noted, this shortsighted argument has been specifically rejected by the Court in prior deci-
sions.
'
29
Thus, the Court's seeming indifference toward the lack of remedies
available to the disenfranchised or diluted voter evinced a basic
misunderstanding of the impact that a special district has on its residents.
IMPACT
This country has experienced an explosive growth in the number of
special districts within a relatively short period of time. 3 ' That growth has
come in part because special districts, unlike municipalities, can provide a
wide variety of services.' 3' The Ball decision encourages a proliferation of
special districts,' 32 and removes many special districts from the one person,
one vote rule.
The Court's willingness to view the supply of water and electricity to
126. 451 U.S. at 379 (White, J., dissenting). The Salt River Project is an agricultural improvement district and therefore is exempt from regulation. See ARIZ. CONST. art. 13, § 7; art.
15, § 2.
127. 451 U.S. at 379. (White, J., dissenting).
128. See id. at 371 n.20. Justice Powell, in his concurring opinion, also preferred to defer to
the state political process. Id. at 372 (Powell, J., concurring). The Court's desire not to invalidate the statutory scheme in Ball is predictable given Professor Tribe's cogent explanation
of the Salyer decision. Tribe maintained that Salyer was among a group of decisions which involved people not asking the state to give them something they could not afford, but rather
poor people asking rich people to share something the legislature had told the rich they could
have. Thus, the Court would be engaging in a form of wealth distribution if it were to invalidate the state statute involved. See TRIBE, supra note 11, at 1133-34.
This would have seemed to have been the probable result of Ball. Although the electrical
rates must be set at a level sufficient to pay off the District's bonds, the new District directors
elected by the nonlandowners could lower the rates so as to interfere with the District's ability
to maintain its current level of operation. This would, in turn, shift part of the financial
burden back to the landowner. Though nonproperty owners might want to lower the electrical
rates, they should not be denied the right to vote because of the way they may vote. See Carrington v. Rash, 380 U.S. 89 (1965) (Texas constitutional provision that effectively disenfranchised military personnel because the state feared a "takeover" from concentrated voting from
military bases declared unconstitutional).
129. See Avery v. Midland County, 390 U.S. 474, 481 (1968); Kramer v. Union Free School
Dist., 395 U.S. 621, 628 n.10 (1968).
130. Within a span of 30 years, 1942-1972, the number of special districts almost tripled.
See D. STETZER, SPECIAL DISTRICTS IN COOK COUNTY: TOWARD A GEOGRAPHY OF LOCAL
GOVERNMENT 15 (1975) [hereinafter cited as STETZER].
131. See BOLLENS, supra note 15, at 5-15, 21-23.
132. The election of Ronald Reagan to the presidency is also likely to cause a greater increase in the number of special districts. The number of special districts suddenly increased
during the Depression because of the drastic reduction in state financial resources. States were
BALL
1981]
195
hundreds of thousands of people as a "peculiarly narrow function'''" is
particularly significant, for if the Salt River District can be removed from
the Reynolds' one person, one vote rule, it is evident that many special
districts, in view of their narrow and assorted functions,' 34 will also be exempted. Although most special districts provide a single service, cumulatively they provide a great diversity of vital services.' In effect, the removal of
many special districts from the popular election requirement of Reynolds
will decrease the public voice of the community in a variety of activities
that affect it.
Public accountability is further undermined by the Ball Court's attitude
toward an "incidental function." The Court's assertion that the "incidental
function" of a governmental unit cannot change the character of the
entity,' 36 may prompt special districts to expand their activities."'
Moreover, since the breadth of the economic effect of an incidental function will not subject the entity to the Reynolds' mandate, those activities
then forced to create special districts with power to issue bonds to finance revenue-producing
improvements. STETZER, supra note 130, at 14. Similarly, President Reagan's withdrawal of
federal support for state programs is likely to lead to a similar result. Accordingly, the Ball
decision, coupled with Reagan federalism, will greatly facilitate special district growth.
133. 451 U.S. at 357.
134. The following list is the number of special districts in the United States and the types
of activities they are engaged in:
FUNCTION
Total .................................................
Natural resources ............................................
Soil conservation ...........................................
D rainage ..................................................
Irrigation, water conservation ...............................
Flood control ..............................................
Other natural resources activity ..............................
Fire protection ...............................................
Urban water supply ..........................................
Housing and urban renewal ...................................
C em eteries ..................................................
Sew erage ....................................................
School building authorities ....................................
Parks and recreation .........................................
H ighw ays ...................................................
H ospitals ...................................................
Libraries .....................................................
Other single-function districts ..................................
M ultiple function districts .....................................
BUREAU OF CENSUS,
135.
BOLLENS,
U.S.
DEP'T OF COMMERCE,
GOVERNMENTAL
NUMBER
25,962
6,595
2,431
2,255
934.
681
294
4,187
2,480
2,408
1,615
1,610
1,020
829
652
715
586
1,545
1,720
ORGANIZATIONS
PERCENT
100.0
25.4
9.4
8.7
3.6
2.6
1.1
16.1
9.6
9.2
6.2
6.2
3.9
3.2
2.5
2..8
2.3
6.0
6.6
5 (1978).
supra note 15, at 21.
136. See notes 78 & 79 and accompanying text supra.
137. For'example, the District also has acquired ownership interests in power plants in
Arizona and Colorado. Appellee's Brief, supra note 109, at 5.
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can grow unchecked despite their impact on the community.' 38 As in Ball,
the populace will be left without adequate input in special district operations which concern the surrounding region.
The Court's acceptance of the special district as a vehicle for regional
development by private citizens may lead to pernicious effects in regions attempting development similar to that in Ball. Although special districts
formed solely for economic self-interest can benefit the entire community,"'
they may be too responsive to the special interests of a select group of
citizens.' 0 In addition, what may be viewed as financially feasible for the
special district, may not be consonant with the ideal, long-range planning of
the community, thereby leading to haphazard and irregular development of
a region."' Finally, a greater infusion of private money into special districts
may give the private sponsors leverage to press for interest-based restrictions on the franchise.
Although the Court seemed to be drawing the line at special districts, the
narrow purpose and disproportionate effect criteria utilized in Ball could
seemingly be applied to a special election involving a narrow function of
municipal government. A tenuous disproportionate effect could be recognized
in special assessment elections so as to justify interest-based restrictions.
Because special assessments burden the property owner and deal with
limited purposes of municipal government, property restrictions could be
placed on the franchise.' 2 The narrow purpose and disproportionate effect
criteria are simply too vulnerable to manipulation and misapplication in
local government special elections. Further, the refusal of the Ball Court to
identify and balance the interests of the disenfranchised or diluted voter
138. The District in Ball is a participant in the Palo Verde Nuclear Generating Station being
constructed near Phoenix. If the Palo Verde plant is completed, it will be the largest nuclear
power plant in the United States. Brief of Amici Curiae at 2, Ball v. James, 451 U.S. 355
(1981).
139. The assessed valuation of lands within the District and Association is generally twice
the assessed valuation of comparable lands outside the District and Association because of the
assurance of an indefinite supply of water. Joint Appendix, supra note 60, at 39.
140. See BOLLENS, supra note 15, at 14-15; STETZER, supra note 128, at 33-36. For a particularly scathing attack on the undemocratic nature of special districts, see THE INSTITUTE FOR
LOCAL SELF GOVERNMENT,
SPECIAL DISTRICTS OR SPECIAL DYNASTIES? DEMOCRACY
DIMINISHED
(1970).
141. See Willoughby, The Quiet Alliance, 38 S. CAL. L. REV. 72, 78 (1965). Willoughby
maintains that the use of special districts for regional development encourages future urban
sprawl. Specifically, special district financing permits the development of inexpensive marginal
lands rather than the higher priced land which is more directly in the path of urban growth.
This leapfrogging tendency leads to irregular and disjointed communities. Id.
142. See County of Riverside v. Whitlock, 22 Cal. App. 3d 863, 99 Cal. Rptr. 710 (4th Dist.
1972) (exclusion of resident nonlandowners from a majority protest scheme for construction of
gas distribution service for domestic service not unconstitutional). See generally Gaines, The
Right of Non-Property Owners to Participatein a Special Assessment Majority Protest, 20
U.C.L.A. L. REV. 201 (1972). See also Note, State Restrictions on Municipal Elections: An
Equal Protection Analysis, 93 HARV. L. REV. 1491 (1980).
19811
BALL
creates speculation as to what interests are sufficient to invoke the
Reynolds' one person, one vote principle in special elections. 43
Pinally, the consideration of only financial factors'.4 in assessing the
District's disproportionate effect ignores any noneconomic impact. For example, as a result of the Ball decision, thousands of Arizona residents are
left without any meaningful input concerning two vital natural
resources-energy and water.' 5 Because many special districts provide services that have profound environmental effects on the community in which
it is located, a complete evaluation of a special district's activities requires
consideration of environmental factors. By overemphasizing financial factors and ignoring the noneconomic impact the Supreme Court has
abrogated its responsibility to the public at large.
AN ALTERNATIVE SCRUTINY
An intermediate level of scrutiny has emerged in recent years in response
to the inflexible results reached under the rational basis and strict scrutiny
analyses.' 6 This alternative standard would balance local governmental
flexibility against the fundamental right to vote. Under intermediate level of
scrutiny, a classification must serve "important governmental objectives
and. be substantially related to the achievement of those objectives."....
Thus, the means to secure the legislative ends need not be as closely related
143. Compare Town of Lockport v. Citizens for Community Action at the Local Level,
Inc., 430 U.S. 259 (1977) (annexation scheme referendum viewed as a special interest election
justifying use of rational basis test) with Hill v. Stone, 421 U.S. 289 (1975) (general obligation
bond issue, even where debt services will be paid entirely from property taxes, is a matter of
general interest justifying use of strict scrutiny).
144. See text accompanying note 82 supra.
145. Specifically, the Arizona legislature recently endorsed the District's policy of pumping
and transporting as much groundwater as is needed with its geographic boundaries. Since
groundwater does not respect property boundaries, the District has been withdrawing groundwater from a common source of supply. Thus, the District's groundwater pumping activities
have a real impact on the water supply of central Arizona bringing about consequences that
vitally affect nonlandowning residents inside and outside of the District's boundaries. See Appellee's Brief, supra note 111, at 6-7. Moreover, the rate of groundwater being pumped is now
more than double nature's ability to recharge the supply. See Pontius, Ground Water Management in Arizona: A New Set of Rules, 16 ARIZ. B.J. 28, 28 (1980).
146. See notes 24 & 25 and accompanying text supra.
147. Craig v. Boren, 429 U.S. 190, 197 (1976). This intermediate level of scrutiny is primarily
used in two areas, illegitimacy and sex discrimination. See, e.g., Wengler v. Druggists Mut.
Ins. Co., 446 U.S. 142 (1980) (denying widower benefits unless he proves dependency on
deceased spouse, but granting widow benefits without proof of dependence, is unjustified);
Lalli v. Lalli, 439 U.S. 259 (1978) (statute which requires illegitimate children to provide proof
of paternity when inheriting from their fathers by intestate succession is substantially related to
the important state interest of just and orderly disposition of property at death). For additional
explanation on how intermediate scrutiny has affected equal protection analysis, see Perry,
Modern Equal Protection: A Conceptualization and Appraisal, 79 COLUM. L. REV. 1023
(1979); Comment, Equal Protection and Due Process: ContrastingMethods of Review Under
Fourteenth Amendment Doctrine, 14 HARV. C.R.-C.L. L. REV. 529 (1979).
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[Vol. 31:177
to that end as strict scrutiny demands, yet the means must be more closely
related than the rational basis requires. Ultimately, this intermediate
scrutiny permits the Court to consider the facts in each case rather than
reach a predetermined conclusion based on the use of strict versus rational
scrutiny.
Under the Salyer exception, special districts are subjected to a rational
basis analysis if a narrow purpose and a disproportionate effect are
found.' 8 If those two criteria are not present, strict scrutiny is applied.
Special districts, by definition, will rarely be subjected to strict scrutiny
under the Ball Court's expansion of the Salyer exception because the narrow purpose criterion is easily satisfied. Special districts frequently perform
a single function in response to a peculiar local problem,' 9 and thus, do
not possess the general governmental powers that would compel application
of the one person, one vote principle of Reynolds. Additionally, the Ball
Court's finding of a disproportionate effect, based upon the minimal financial differences between the landowners and nonlandowners,"' makes it evident that the disproportionate effect criterion is equally easy to satisfy.
Regardless of their function, special districts which restrict or weight the
franchise to property owners should trigger an intermediate level of
scrutiny. Special districts furnish essential services to a demanding local
constituency which many municipalities cannot provide.'"' Therefore,
removing special districts from a strict scrutiny analysis preserves autonomy
and flexibility at the local governmental level.' 2 It does not necessarily
follow, however, that voting rights should be sacrificed by subjecting the
special district to a rational basis test.' 3 Although the rights at stake in Ball
148.
149.
150.
151.
410 U.S. at 728.
See BOLLENS, supra note 15, at 5-14.
See notes 109-18 and accompanying text supra.
See BOLLENS, STETZER, supra note 128, at 26-29.
152. A paramount concern of those who opposed the application of the one person, one
vote rule to local government was that flexibility and innovation would be stifled. See Hadley
v. Junior College Dist., 397 U.S. 50, 60-61 (1970) (Harlan, J., dissenting); Avery v. Midland
County, 390 U.S. 474, 490-91 (1968) (Harlan, J., dissenting). For a discussion that reapportionment has had a favorable impact on local government, see Herget, The Impact of the
Fourteenth Amendment on the Structure of Metropolitan and Regional Governments, 23
HASTINGS L.J. 763 (1972); Jones, Metropolitan Detente: Is It Politically and Constitutionally
Possible?, 36 GEO. WASH. L. REV. 741 (1968).
153. Cf. Holt Civic Club v. City of Tuscaloosa, 439 U.S. 60 (1978) (rational basis test used
to sustain the constitutionality of "police jurisdiction" statutes that extended municipal police,
sanitary, and business-licensing powers over residents living within three miles of Tuscaloosa's
corporate boundaries but excluded those residents from voting in municipal elections).
The Court's cavalier attitude toward state structuring of special district voting is mirrored by
its increasingly receptive stance toward state districting. In Abate v. Mundt, 403 U.S. 182
(1971), the Court found justification for an 11.9% total deviation from population equality in
the apportionment of a county legislature. In a later case, in Mahan v. Howell, 410 U.S. 315
(1973), the Court permitted a variation of 16.4% from population equality in the redistricting
of the lower house of the Virginia legislature. That deviation was justified by "the State's
policy of maintaining the integrity of political subdivision lines .
" I.Id. at 325. Finally, the
Court allowed a new category of "minor" deviations in population equality that required no
justification whatsoever. A maximum variation among districts of about eight percent was
19811
1 BALL
were not the basic political or civil rights that Reynolds was designed to
protect,' 5 ' the interests of the disenfranchised class were not so inconsequential as to justify judicial neglect."' A closer examination of the circumstances in Ball, as would be required if the Court adopted an intermediate scrutiny approach, reveals the infirmities in the present statutory
scheme and its application to contemporary Arizona.
Under an intermediate level of scrutiny the Court would have considered
whether irrigation was an important state objective and whether the restrictive voting scheme was substantially related to the state's goal of
irrigation."16 Adequate irrigation for agricultural purposes is most assuredly
an important governmental objective in the arid state of Arizona." ' When
the District was formed in 1937, more than ninety-four percent of the land
was used for agricultural purposes."' Today, however, less than half of the
land in the District is considered agricultural, and approximately forty per-
cent of the water now distributed is used for nonagricultural purposes." 9 In
short, the dramatic demographic shift'"" in the area renders the District's
restrictive voting scheme highly suspect as to whether it is substantially
related to achieving the state's goal of irrigation. While the Ball Court's rational basis analysis looked only to the circumstances surrounding the
District's creation,' 6 ' an intermediate scrutiny approach would have further
examined the District's current effect on Arizona residents.'
The rational basis test provides an inadequate analysis for determining
the constitutionality of a restrictive voting scheme.' Once the Court has
recognized a narrow purpose and a disproportionate effect, an intermediate
allowed in Gaffney v. Cummings, 412 U.S. 735 (1973), and in White v. Regester, 412 U.S. 755
(1973), a maximum deviation of 9.907o was found to be relatively minor, and thus, permissible.
154. 377 U.S. at 561-62.
155. See note 120 and accompanying text supra.
156. See note 147 and accompanying text supra.
157. See California Oregon Power Co. v. Beaver Portland Cement Co., 295 U.S. 142,
156-57 (1935) (future prosperity of the arid belt states depends upon artificial irrigation);
Fallbrook Irrigation Dist. v. Bradley, 164 U.S. 112, 151-54 (1896) (future growth and wellbeing of the desertland states depends upon the agricultural use of the land, which requires artificial irrigation).
158. Joint Appendix, supra note 60, at 32.
159. Appellee's Brief, supra note 111, at 2-3. In 1979, 56016 of the District land was considered urban. Id.
160. The rural population in Arizona increased from 286,000 to 362,000 in the forty-year
period between 1930 and 1970. During that same period, the urban population grew from
150,000 to 1,409,000. BUREAU OF CENSUS, U.S. DEP'T OF COMMERCE, HISTORICAL STATISTICS
OF THE UNITED STATES 24 (1976).
161. See text accompanying note 84 supra.
162. Because the intermediate level of scrutiny looks to whether the classification was
substantially telated to the state's objective, that analysis requires examination of how the
restrictive voting scheme applies to contemporary Arizona.
163. In Lockport v. Citizens for Community Action, 430 U.S. 259 (1977), the Court maintained that the "classification of voters into 'interested' and 'noninterested' groups must . . .
be reasonably precise ..
" Id. at 266. But as the Ball decision forcefully demonstrates, the
rational basis analysis is inadequate in determining whether the classifications are drawn
reasonably precisely.
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[Vol. 31:177
level of scrutiny should be applied.""4 Only under this type of approach will
all interests be given sufficient consideration.
CONCLUSION
Special district voting schemes that deny nonlandowners the right to vote
and dilute the vote of small landowners have been sanctioned by the
Supreme Court. Following the Salyer exception, the Court in Ball v. James
endorsed the restrictive voting scheme for the Salt River District because its
supply of electricity and water to Arizona residents was deemed a narrow
purpose and its operations bore disproportionately on landowners. Taken
together, these facts precluded the generally required application of the
Reynolds' one person, one vote principle. The Ball Court's constricted
perception of the District's purpose and disproportionate effect emasculated
any constitutional safeguards the Salyer exception possessed. More importantly, the Court's broad reading of Salyer signals an increased indifference
toward the fundamental right to vote. This indifference may lead to more
interest-based restrictions on the franchise, particularly in light of the
Court's unwillingness to consider the interests of the disenfranchised or
diluted voter, and its refusal to discuss the impact of special district services. Until state legislatures begin to draw voting restrictions with greater
precision, important interests will be left without adequate representation.
Michael E. Tabor
164. Two additional alternatives can be gleaned from prior Court decisions. First, in Kramer
v. Union Free School Dist., 395 U.S. 621 (1969), Justice Stewart remarked: "Special-purpose
governmental authorities such as water, lighting, and sewer districts exist in various sections of
the country, and participation in such districts is undoubtedly limited in many instances to
those who partake of the agency's services and are assessed for its expenses." Id. at 640 n.9
(Stewart, J., dissenting). Thus, a reasonable alternative to property restrictions is simply that
anyone receiving and paying for a service should be allowed to participate in the special district
election.
The second and broader alternative can be found in the reasoning underlying the Court's
decision in Avery v. Midland County, 390 U.S. 474 (1968). In Avery, the Court applied the
Reynolds' one person, one vote principle to the election of the Commissioners Court because
that court had the authority "to make a substantial number of decisions that affect all citizens.
." Id. at 484 (emphasis added). Under Avery, the focus is on the impact of the
decisions
made by the governmental unit. Therefore, any time an individual is substantially affected by a
governmental unit, that person should be allowed to participate in the election of that unit's
officials.